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MEDICAL SOCIETY OF THE STATE OF NEW YORK

DIVISION OF

GOVERNMENTAL AFFAIRS Philip SchuhExecutive Vice-President

LIZABETH DEARS KENT, ESQ.enior Vice President and

Chief Legislative Counsel

MORRIS M. AUSTER, ESQ.Vice Presidentegislative and Regulatory Affairs

AT CLANCYVice President

ublic Health and Education

ARBARA K. ELLMAN

Associate Director for Policy

OANNE WISEManager, Continuing Education

.

ONE COMMERCE PLAZA, SUITE 408, ALBANY, NY 12210 TELEPHONE (518) 465-8085FAX (518) 465-0976E-MAIL albany@mssny.org

March 1, 2013

Governor Andrew CuomoState CapitolAlbany New York, 12224

Dear Governor Cuomo:

We write to you today to urgently request immediate action to delay themid-March effective date of MHL 9.46 enacted as part of SAFE Act, toallow time for further discussion of a possible chapter amendment to the

SAFE Act to modify the mental-health reporting requirement. The lawcurrently requires certain health care professionals, including physicians,to make a report to the local director of community services when thehealth care professional concludes in their reasonable professional

judgment that a patient is likely to engage in conduct that would resultin serious harm to self or others. This standard differs from the existingstandard (MHL 33.13(c)(6)) currently used to allow the report to be madewhen a patient is receiving treatment in an OMH or OPWDD licensed oroperated facility. In such instances, a physician or psychologist mayreport to law enforcement or the individual threatened if a patientpresents a serious and imminent threat to health and safety of self orothers.

We believe that the mandate in the SAFE Act is so broad as to result in thereporting of many patients who would not be subject to reporting underthe MHL 33.13(c)(6) standard. This over-reporting includes many patientswhose mental illness would never require hospitalization. We areconcerned that the existence of two standards will cause significantconfusion among health care professionals and could result in thereporting of persons who do not pose a serious and imminent threat tosociety. This will necessarily deter persons who live with mental illnessfrom seeking much-needed treatment and services.

Moreover, we believe that the law should be amended to clearly do away

with the private right of action, which will result in litigation over thequestion of whether the reporter exercised reasonable professionaljudgment in the exercise of their duty. The law should be clarified toassure that the decision of a mental health professional to disclose or notto disclose, if exercised without malice or intentional misconduct, shall notbe the basis for any civil or criminal liability.

We are also concerned that the failure to authorize the report be made toa person or entity who is reasonably able to mitigate the immediate threat

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Finally, we believe that psychiatric nurse practitioners, not registered nurses (RNs)should be authorized to make a report. The scope of practice of RNs does not extend tomaking the diagnosis and prognosis necessary to evoke a report.

We are available to discuss this matter further. We ask that you proactively work toassure enactment of a chapter amendment prior to effective date of the duty to reportMarch 16th or to take immediate action to delay the effective date of that section oflaw.

Thank you for your immediate consideration.

Sincerely,

ROBERT J. HUGHES, MD GLENN MARTIN, MDPresident PresidentMedical Society of the State of NY NYS Psychiatric Association Of New

York

cc: Assembly Speaker Sheldon SilverJim Yates, Esq., General Counsel to Assembly SpeakerLouAnn Ciccone, Secretary to the Speaker for Program and PolicyMartin Rosenbaum, Senior Team Counsel, Assembly Codes CommitteeSenate Republican Conference Leader Dean G. SkelosSenate Independent Democratic Conference Leader Jeffrey KleinDiane Burman, Esq, Executive Counsel to Senate Republican Conference

Tom Wickham, Program Director to Senate Republican ConferenceKathryn Coleman, Principal Health Analyst, Senate Republican Conference

Counsel & FinanceSenator David Carlucci, Chairman Senate Mental Health and Developmental

Disabilities CommitteeSenator Thomas Libous, Deputy Republican Conference LeaderAssemblywoman Aileen Gunther, Chairwoman, Assembly Mental Health

Committee

ONE COMMERCE PLAZA, SUITE 408, ALBANY, NY 12210 TELEPHONE (518) 465-8085FAX (518) 465-0976E-MAIL albany@mssny.org